Juarbe v. Astrue

Filing 25

MEMORANDUM DECISION granting 18 Motion to Reverse the Decision of the Commissioner to the extent it seeks to remand this case for a de novo hearing; denying 19 Motion to Affirm the Decision of the Commissioner; adopting 22 Recommended Ruling.. Signed by Judge Mark R. Kravitz on 9/28/11. (Brown, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MILDRED JUARBE A/K/A
MILDRED J. JUARBE MASS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.

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No. 3:10cv1557 (MRK)(WIG)

MEMORANDUM OF DECISION
On October 1, 2010, Plaintiff Mildred Juarbe filed a Complaint [doc. # 2] pursuant to
the Social Security Act. See 42 U.S.C. § 405(g). She seeks review of a final decision by
Defendant Michael J. Astrue, the Commissioner of the Social Security Administration
("Commissioner"), denying her application for Social Security Disability Insurance and
Supplemental Security Income Benefits. Magistrate Judge William I. Garfinkel issued a
Recommended Ruling [doc.

# 22] on August 30, 2011.

Pursuant to Rule 72(b)(3) of the Federal Rules of Civil Procedure and Local Rule
72.2(b), this Court reviews de novo those sections of the Recommended Ruling [doc. # 22] to
which parties properly objected. The parties' main source of contention is whether Ms.
Juarbe's back, pelvic, and abdominal pain was "severe" for the purposes of the second step of
the five-step analysis. 1 The Commissioner observes that there is no objective clinical or
laboratory diagnostic evidence in the record establishing the presence of an impairment which
1

Neither party contests Magistrate Judge Garfinkel's finding that the ALJ properly excluded
Ms. Juarbe's spina bifida occulta from the list of her severe physical impairments.
1

could reasonably be expected to cause the back, abdominal, or pelvic pain of which Ms.
Juarbe complains. See Def.'s Objection to Recommended Ruling [doc. # 23]. In her Response
[doc. # 24], Ms. Juarbe argues that her pain constitutes an objective "sign" of an impairment,
rather than a subjective "symptom" of an unconfirmed impairment.
Adopting the facts set forth in the Recommended Ruling [doc. # 22], especially those
regarding Ms. Juarbe's history of back, pelvic, and abdominal pain, see id. at 8-11, the Court
agrees with Magistrate Judge Garfinkel that the Administrative Law Judge ("ALJ") Robert A.
DiBiccaro's determination that Ms. Juarbe has no severe physical impairments is unsupported
by substantial evidence. Because remand is warranted on this issue alone, there is no need to
address Ms. Juarbe's other claims. The Court therefore ADOPTS Magistrate Judge Garfinkel's
Recommended Ruling [doc. # 22], GRANTS Ms. Juarbe's Motion for Order Reversing the
Decision of the Defendant Commissioner [doc. # 18] to the extent it seeks to remand this case
for a de novo hearing, and DENIES the Commissioner's Motion for an Order Affirming the
Commissioner's Decision [doc. # 19]. The Court nonetheless takes this opportunity to make
certain observations regarding the relevant law in this case.

II.
Ms. Juarbe's history of back, pelvic, and abdominal pain is well-documented in the
administrative record. 2 See Recommended Ruling [doc. # 22] at 8-11, 12. ALJ DiBiccaro
acknowledged that Ms. Juarbe had "made a number of complaints of physical pain in various
bodily areas including her lower back." Admin. R. at 17 (citations omitted) [hereinafter A.R.].
2

As Magistrate Judge Garfinkel observes, "The ALJ's failure to recognize a 'severe' physical
impairment is not surprising, as Plaintiff herself made little mention of one." Recommended
Ruling [doc. # 22] at 4. The ALJ nevertheless has a duty to consider the full administrative
record. See 20 C.F.R. § 404.1520(a)(3); e.g., Crump v. Astrue, No. 7:06-CV-1003
(NAM/DRH), 2009 WL 2424196, at *6 (N.D.N.Y. Aug. 5, 2009).
2

However, because no diagnostic imaging had been performed based on Ms. Juarbe's
complaints, 3 because her complaints were "sporadic and generally short lived" and many predated the alleged onset date, because there was "little evidence of any more than minimal
physical limitations," and because Ms. Juarbe had not mentioned physical problems at the
administrative hearing, 4 the ALJ concluded that Ms. Juarbe "has no 'severe' physical
impairment." Id. It is unclear whether the ALJ determined that Ms. Juarbe had no physical
impairments at all—including no severe ones—or that Ms. Juarbe had non-severe physical
impairments.

A.
To determine whether Ms. Juarbe has a physical impairment, the Court must decide
whether Ms. Juarbe's pain constitutes "signs" of one or more physical impairments, rather
than mere "symptoms." See Social Security Ruling ("SSR") 96-4p.
Symptoms, such as pain, "are an individual's own perception or description of the
impact of his or her medical impairment(s). Id. n.2. "A 'symptom' is not a 'medically
determinable physical or mental impairment' and no symptom by itself can establish the
existence of such an impairment." Id. Accordingly, "[n]o symptom or combination of
symptoms can be the basis for a finding of disability, no matter how genuine the individual's
complaints may appear to be, unless there are medical signs and laboratory findings
demonstrating the existence of a medically determinable physical or mental impairment." Id.
3

There was no medical examiner at the hearing. As a result, ALJ DiBiccaro may have placed
undue weight on Ms. Juarbe's lack of diagnostic imaging tests. See A.R. at 17; cf. Cutler v.
Weinberger, 516 F.2d 1282, 1286 & n.2 (2d Cir. 1975).
4
However, at the administrative hearing, Ms. Juarbe testified that "she did not think she could
perform her past work because of 'muscular pain.'" Recommended Ruling [doc. # 22] at 12
(citing Admin. R. at 103).
3

"However, . . . an anatomical, physiological, or psychological abnormality that can be
shown by medically acceptable clinical diagnostic techniques . . . represents a medical 'sign'
rather than a 'symptom.'" Id. n.2. In a 1998 letter discussing fibromyalgia and chronic fatigue
syndrome, the Deputy Commissioner for Disability and Income Security Programs noted:
Establishing the existence of a medically determinable impairment does not
necessarily require that the claimant or the medical evidence establish a
specific diagnosis. . . . In some cases, the record may not establish the
diagnosis, but there will be medical signs established by medically acceptable
clinical techniques that show that there is an impairment, and that there is a
relationship between the findings and the symptoms alleged . . . . [T]he
medically determinable impairment is established in the presence of
anatomical, physiological, or psychological abnormalities that can be
objectively observed and reported apart from the individual's perceptions even
in the absence of a definitive diagnosis.
Letter from Susan M. Daniels, Ph. D., Deputy Comm'r for Disability and Income Sec.
Programs, Soc. Sec. Admin., to Verrell L. Dethloff, ALJ, Soc. Sec. Admin. (May 11, 1998),
available at http://www.fibroassist.net/SSA_FM.htm (emphasis added) [hereinafter Daniels
Letter].
Ms. Juarbe admits that "the precise cause of the [back, pelvic, and abdominal] pain
appears not to have been firmly diagnosed." Mem. in Supp. of Pl.'s Mot. for Order Reversing
Dec. [doc. # 18-1] at 19. However, a concrete final diagnosis is not required for a finding that
Ms. Juarbe's pain is a sign of a physical impairment. See Daniels Letter.
Ms. Juarbe has at least one and possibly multiple physical impairments. First, Ms.
Juarbe's ovarian cyst is an objectively observable physical impairment. 5 See Daniels Letter;
see also Walterich v. Astrue, 578 F. Supp. 2d 482, 505 (W.D.N.Y. 2008) (noting that an ALJ
5

The Commissioner's reliance on Gallagher v. Schweiker, 697 F.2d 82 (2d Cir. 1983), is
misplaced. Unlike Ms. Gallagher, Ms. Juarbe has at least one objectively observable physical
impairment, and while all Ms. Juarbe's physical impairments may not yet be completely
diagnosed, her symptoms appear to have at least one medically ascertainable source.
4

determined that claimant's ovarian cyst was a non-severe physical impairment). Second, her
other possible diagnoses—including those for of pelvic adhesions, see A.R. at 303, and
interstitial cystitis, see id. at 298—appear to have been identified through "medically
acceptable clinical and laboratory diagnostic techniques." SSR 96-4p. The former would
require surgery for a final, confirmatory diagnosis, but it may also be diagnosed based on a
physical

exam.

See

Pelvic

Pain

Symptoms,

Univ.

of

Cal.

S.F.

Med.

Ctr.,

http://www.ucsfhealth.org/conditions/ pelvic_pain/signs_and_symptoms.html. There is no
definitive test for interstitial cystitis; the diagnosis is usually made by ruling out other causes.
See

Interstitial

Cystitis,

U.S.

Nat'l

Library

of

Med.,

http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001508/.
There is conflicting authority on whether diagnoses need to be supported by
"objective" clinical and laboratory findings. Compare Cutler v. Weinberger, 516 F.2d 1282,
1286 (2d Cir. 1975) (stating that 42 U.S.C. § 423(d)(3)'s requirement "does not mean that
medical opinion must necessarily be supported by 'objective' clinical or laboratory findings"),
and Kraemer v. Apfel, No. 97 Civ. 8638 (AGS), 1999 WL 14684, at *4 (S.D.N.Y. 1999)
("Medically acceptable clinical diagnostic techniques include diagnoses based entirely upon a
patient's symptomology."), with Daniels Letter ("[T]he medically determinable impairment is
established in the presence of . . . abnormalities that can be objectively observed and reported
apart from the individual's perceptions.").
While interesting, this is not a question that must be resolved here. Although some
diagnoses are primarily based on a patient's subjective perceptions, Ms. Juarbe's ovarian cyst
is, and her pelvic adhesions may be, objectively observable.

5

B.
"[O]nce the requisite relationship between the medically determinable impairment(s)
and the alleged symptom(s) is established, the intensity, persistence, and limiting effects of
the symptom(s) must be considered along with the objective medical and other evidence in
determining whether the impairment or combination of impairments is severe." SSR 96-3p. In
considering symptoms, an ALJ "will not reject [a claimant's] statements above the intensity
and persistence of [her] pain or other symptoms or about the effect [her] symptoms have on
[her] ability to work solely because the available objective medical evidence does not
substantial [her] statements." C.F.R. 20 § 404.1529(c)(2).
Relevant factors in evaluating the severity of claimant's pain include the claimant's
daily activities; the location, duration, frequency, and intensity of the pain; precipitating and
aggravating factors; the type, dosage, effectiveness, and side effects of medication; treatment
other than medication; any measures the claimant uses to relieve pain; and other factors
concerning limitations and restrictions due to pain. See id. § 404.1529(c)(3). If symptomrelated limitations and restrictions have "more than a minimal effect on an individual's ability
to do basic work activities, the adjudicator must find that the impairment(s) is severe and
proceed to the next step in the process even if the objective medical evidence would not in
itself establish that the impairment(s) is severe." SSR 96-3p.
Ms. Juarbe's pain might have more than a minimal effect on her ability to complete
basic tasks: in April 2007, she rated her abdominal and back pain "10 out of 10 on a pain
scale," Recommended Ruling [doc. # 22] at 9 (citing A.R. at 295); in August 2008, Ms.
Juarbe experienced pain "'with just walking,'" id. at 10 (citing A.R. at 481); in June 2009, a
clinician noted that her back pain appears to be exacerbated by stress, id. at 11 (citing A.R. at

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452). Ms. Juarbe has tried a host of medications to alleviate her symptoms, apparently to
limited avail. See id. at 8-12. Furthermore, "at the administrative hearing, Plaintiff did testify
through an interpreter that she did not think she could perform her past work because of
'muscular pain.'" Id. at 12 (citing A.R. at 103).
The U.S. Supreme Court and Second Circuit Court of Appeals have both stated that
the severity analysis should be used only to screen out de minimis claims. See Dixon v.
Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995) (citing Bowen v. Yuckert, 482 U.S. 137, 158
(1987)). Furthermore, if an adjudicator cannot determine clearly the effect of an impairment
on a claimant's ability to conduct basic work activities, the adjudicator should err on the side
of proceeding with the sequential analysis. See SSR 85-28.
Accordingly, as ALJ DiBiccaro did not explicitly address whether Ms. Juarbe had a
physical impairment—much less the effects of the combination of her physical impairments—
the Court finds that ALJ DiBiccaro's determination that Ms. Juarbe's physical impairments
were not severe is not supported by substantial evidence. If anything, Ms. Juarbe appears to
have provided substantial evidence that her physical impairments are severe, as her symptomrelated limitations and restrictions appear to have "more than a minimal effect on [her] ability
to do basic work activities." SSR 96-3p.

III.
The Court ADOPTS Magistrate Judge William I. Garfinkel's Recommended Ruling
[doc. # 22], GRANTS Ms. Juarbe's Motion to Reverse the Decision of the Commissioner
[doc. # 18] to the extent it seeks to remand this case for a de novo hearing, and DENIES the
Commissioner's Motion for an Order Affirming the Commissioner's Decision [doc. # 19].

7

The Clerk of Court shall enter judgment in accordance with this Order and close the
file.

IT IS SO ORDERED.

/s/

Dated at New Haven, Connecticut: September 28, 2011.

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Mark R. Kravitz
United States District Judge